IN THE COURT OF COMMON PLEAS GEAUGA COUNTY, OHIO

\7 SF? -1 Pt-l 4: 23
Sf ATE OF OHIO,
) ) ) ) ) ) ) ) ) CASE NO. 12 C 58 JUDGE DAVID L. FUHRY

-vsTHOMAS M. LANE, III, Defendant.

DEFENDANT'S

REPLY BRIEF

(Oral Hearing Requested)

Now comes the Defendant, Thomas M. Lane, III, by and through counsel, and hereby submits the instant Reply Brief to the State's Response to Motion for Change of Venue.

IAN N. FRIEDMAN (0068630) ANNE B. WALTON (0086713) FRIEDMAN & FREY, L.L.c. 1304 West 6th Street Cleveland, Ohio 44113 P: (216) 928-7700 F: (216) 556-9779 E-mail: ifriedman@faflegal.com E-mail: awalton@faflegal.com and

bU.u)m~

Respectfully submitted,

MARK R. DEVAN (0003339) BERKMAN, GORDON, MURRAY & DEVAN 55 Public Square, Suite 2200 Cleveland, Ohio 44113 P: (216) 781-5245 F: (216) 781-8207 E-mail: mdevan@bgmdlaw.com Attorneys for Defendant Thomas M. Lane, III

REPLY BRIEF I. The Defendant's Request for A Change of Venue is Not Premature. In its brief in response, the State of Ohio argues that it would be premature for the Court to transfer this case to another jurisdiction before attempting to seat a jury. The State's argument ignores the United States Supreme Court precedent cited in support of the defendant's Motion for a Change of Venue. Specifically, the Supreme Court has held that "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity." See Sheppard v.
Maxwell

(1966), 384 U.S. 333, 363, 86 S.Ct. 1507.

In the instant case, the prejudicial

pretrial publicity has not abated and the passions of the community have not settled down. The extensive and prejudicial coverage of this matter has continued since Therefore, the appropriate manner to protect the defendant's right

February 27, 2012.

to a fair trial by an impartial jury is to transfer venue of this case to another county. The cases cited in the Defendant's Motion for a Change of Venue in which a change of venue was, or should have been, granted, weigh heavily in favor of granting the instant motion. As the State noted, in a number of cases cited the Motion for Change of Venue was denied and the case proceeded to voir dire. However, what is important to consider is that the Courts' later found that a change of venue should have been granted in these cases. See Irvin v. Douid (1961), 366 U.S. 717, 81 S.Ct. 1639 (a change of venue was initially granted to an adjacent county but the Supreme Court held that a

subsequent change of venue should have been granted); Sheppard v. Maxwell (1966),384 2

u.s. 333, 86 S.Ct. 1507.

Furthermore, the Defendant's Motion for a Change of Venue

also cited a number of cases in which a change of venue was granted prior to attempting to seat a jury in the original county. See Estes v. Texas (1965), 381 U'S, 532;

United States v. McVeigh (W.D. Okla. 1996), 918 F.Supp. 1467; State v. Potter (1989), 64
Ohio App.3d 549, 553, 582 N.E.2d 30. (Wherein the Third District Court of Appeals held that the trial court was not required to make a good faith effort to empanel a jury before granting the defendant's motion for a change of venue. The trial court determined that the defendant had made a clear and manifest showing that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury would be a vain act). II. Attempting to Seat a Jury in Geauga County Would be a Vain Act. Despite the State's contention that the pretrial publicity does not demonize the defendant, it is clear that many of the articles written about the events of February 27, 2012 are prejudicial to the defendant, whether they mention him by name or not. The State's depiction of the media coverage of this incident as "rather tame given the subject being covered" is a rnischaracterization. one of bloodshed, reported The fact that the media described this event as "methodically" killed students, or

that the defendant

provided details about the defendant's disregarded.

"troubled past" should not be overlooked or

Further, the fact that many of the ribbons and signs displaying the One

Heartbeat slogan do not reference the defendant by name ignores the fact that all references to this tragedy are implicitly associated with the defendant. The defendant submits that the four volumes of exhibits attached to his Motion for a Change of Venue, including newspaper 3 articles and television broadcast

transcripts (many of which are prejudicial and! or inaccurate), sample.r'One Heartbeat" memorabilia, and photographs of approximately 1,200 memorials located within a fivemile radius of the Geauga County Courthouse make a clear and manifest showing that an attempt to seat a jury in Geauga County would be a vain act. Geauga County is a close-knit community and unlike many highly populated areas it hasn't experienced an event as horrific as this. The incident was such a tragedy and gained so much notoriety throughout the United States that there is likely not a person who is of the age required to be a juror in Geauga County that hasn't been emotionally impacted by it. As set forth in the Motion for a Change of Venue, the community's response to this incident is reflected by the One Heartbeat campaign. Throughout Geauga County are references to this campaign or to the tragedy itself. It wasn't born out of solidarity alone; it was born out of grief for all the people who have suffered because of the actions of the defendant. No matter how well intentioned the citizenry is, it is

inconceivable that after this event and the publicity and feelings that arose out of it, any reasonable person in Geauga County could keep an open mind or judge the defendant fairly. To hold a trial in Geauga County would be asking people to put aside their emotions and their sense of unity and judge Thomas Lane, III as they would another criminal defendant. While it is true that jurors are not required to be totally ignorant of facts and issues involved, a juror must be able to lay aside his impression or opinion and render a verdict based on evidence presented in court.

This is not a routine case where a venire could come in without extensive knowledge of the facts or without a predisposition as to guilt or innocence. In Geauga County, this is the case of the century. This is not a criticism of the good people of

Geauga County. Rather, it is a recognition of the limitations on human beings to put aside their fears, their loyalties, and their emotions in a case where all those things are pervasive .. III. Conclusion.

In this case, the interest of justice, and particularly the interest in protecting the defendant's right to a fair trial by an impartial and "indifferent" jury, warrant that it be moved to a location where people can consider the evidence, determine the facts and apply the law in a calm and dispassionate manner. That cannot be done in Geauga County. Every person who is selected to sit on the jury in this case, if trial were held in Geauga County, would suffer under the anticipation that they will have to live in the community long after they deliberate and return a verdict, and answer to others for their decision. As it pertains to the citizens of Geauga County, the prospect that jurors would even consider a legitimate defense pales in comparison to the reality that each of them will feel they will be held accountable for their decision in this case. In a trial of this magnitude, all parties should strive to minimize all chance of appellate error so that whatever result is ultimately reached is final.

Wherefore, Defendant, Thomas M. Lane III, having

facts and authorities, to another county. an evidentiary

first

demonstrated

sufficient

now moves this Honorable Court to transfer venue of the this case The Defendant renews his request for this Honorable Court to hold

hearing so that evidence in support of his Motion for Change of Venue prior to the formation of a jury pool. Respectfully submitted,

may be presented

L-BI1~
IAN N. FRIEDMAN (0068630) ANNE B. WALTON (0086713) FRIEDMAN & FREY, L.L.c. 1304 West 6th Street Cleveland, Ohio 44113 P: (216) 928-7700 F: (216) 556-9779 E-mail: ifriedman@faflegal.com E-mail: awalton@faflegal.com and MARK R. DEVAN (0003339) BERKMAN, GORDON, MURRAY & DEVAN 55 Public Square, Suite 2200 Cleveland, Ohio 44113 P: (216) 781-5245 F: (216) 781-8207 E-mail: mdevan@bgmdlaw.com Attorneys for Defendant Thomas M. Lane, III

CERTIFICATE OF SERVICE
A copy of the foregoing was served upon David Joyce, Geauga County

Prosecutor, and Nick Burling, Assistant Geauga County Prosecutor, Courthouse Annex, 231 Main Street, Suite 3-A, Chardon, Ohio, 44024 via hand-delivery September, 2012. this 7th day of

ANNE B. WALTON (0086713) One of the Attorneys for Defendant Thomas M. Lane, III